ON APPEAL FROM THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
Judge Howell QC and Judge Jacobs
UKUT 234 (AAC) and  UKUT 90 (AAC)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE HALLETT
LORD JUSTICE ELIAS
| Donna Louise Minter
|- and -
|Kingston Upon Hull City Council
|- and -
|Secretary of State for Work and Pensions
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Richard Drabble QC (instructed by Legal Services) for the Respondent (Kingston Upon Hull City Council)
David Blundell (instructed by DWP Legal Group) for the Respondent (Secretary of State for Work and Pensions)
Hearing date: 19 July 2011
Crown Copyright ©
Lord Justice Thomas:
(i) Equal pay claims
(ii) Miss Minter
(a) equal pay (including any claim under the Equal Pay Act 1970 or the Equal Treatment Directive),
(b) any claim under the Sex Discrimination Act 1975 (including but not limited to any claim for compensation for injury to feelings),
(c) breach of contract (including any claim alleged to be payable under an equality clause),
(d) unlawful deduction of wages (including any sum alleged to be payable under an equality clause),
(e) claims brought under any of the preceding causes of action that arose in the period January 2007 to September 2009 relating to payment protection of income levels applied to comparative groups, and
(f) claims for loss of pension rights in relation to the compensation period.
It is clear from the settlement agreement and other information put before us that the sums paid to Miss Minter were calculated by the Council with reference to Miss Minter's past income.
(iii) Miss Potter
(iv) The argument of the employees
The Housing Benefit Regulations
i) Within Section a, entitled "income", Regulation 27 provides that income is to be calculated on a weekly basis. Under Regulation 29 where income comprises earnings from employment it is to be calculated by a specified average in accordance with the calculation method set out in Section b entitled "employed earners" and in particular Regulation 35 which provides:"Regulation 35. – Earnings of employed earners(1) Subject to paragraph (2), "earnings" means in the case of employment as an employed earner, any remuneration or profit derived from that employment and includes –(a) any bonus or commission;(b) any payment in lieu of remuneration except any periodic sum paid to a claimant on account of the termination of his employment by reason of redundancy;(c) any payment in lieu of notice of any lump sum payment intended as compensation for the loss of employment but only in so far as it represents loss of income;"
ii) There is then a general sweep up provision for other income in Section d of the regulations. Regulation 41 is entitled "Capital Treated as income"; paragraph (3) provides:"Any earnings to the extent that they are not a payment of income shall be treated as income."
iii) Rules for the calculation of capital are set out in Section e, entitled "Capital" - Regulations 43 and following. Regulation 44 provides that the whole of the capital, calculated in accordance with the regulations is to be brought into account.
The Jobseeker's Allowance Regulations
i) Regulation 98, entitled "Earnings of employed earners", is very similar to Regulation 35 of the Housing Benefit Regulations, but it does not have an equivalent to Regulation 35(1)(b) (payment in lieu of remuneration). It provides:(1) Subject to paragraphs (2) and (3), "earnings" means in the case of employment as an employed earner, any remuneration or profit derived from that employment and includes:....(b) any compensation payment...(3) In this regulation "compensation payment" means any payment made in respect of the termination of employment other than..(a)–(d)
ii) Regulation 104(4) is identical to Regulation 41(3) of the Housing Benefit Regulations.
The decisions of the Upper Tribunal
The characterisation of the payments
(i) The approach
(ii) The payment to Miss Minter
(iii) The payment to Miss Potter
Lord Justice Elias:
Lady Justice Hallett: